The Specialist Support Service (SSS) has been one of the few success stories to come out of the Legal Services Commission in the last 5 years. The LSC recently stunned both providers and users of the service by serving notice of termination. The LSC rationalise the decision as part of its ongoing management of fund expenditure. Bridget Prentice MP, Parliamentary Under Secretary of State, says “The LSC must decide whether initiatives should continue to command funding in the current financial climate, or whether funding should be refocused to fit better with the vision of the Community Legal Service in the future and better delivered value for money”.

The LSC suggest that by axing the SSS they can provide almost 9000 more people with face to face advice. Upon closer examination, this claim hardly holds water. Indeed, it has been suggested that the Minister has been mislead as to the effect of “refocusing” money from this service.

There is no question of the value of the work delivered under the SSS. The LSC assessed the service, giving glowing commendations. Hundreds of front line advisers have been able to advice thousands of clients with the assistance of the Specialist Support Service.

Questions have been raised in both Houses of Parliament and the Select Committee has called the senior officers of the LSC to appear before it, to account for their decision to axe, what has been seen as a high quality essential service.

Why was there a need for a Specialist Support Service?

Franchising and contracting improved the quality of advice services given to clients with increased specialisation. This saw the removal of ‘dabblers’, which many argue, was necessary but it also saw the removal of the general practitioner so respected and relied upon, particularly in rural communities.

Gaps began to appear in the provision of legal services and access to justice.

Vulnerable clients were left to travel long distances or go without advice. There was clearly unmet need!

The LSC has a responsibility under the Access to Justice Act 1999, to ensure that individuals have access to services that effectively meet their needs.

Advice deserts began to emerge in many fundamental categories of law throughout England and Wales. The LSC, to its credit, sought to address such deserts, by testing alternative means of delivery. Pilot projects were tried. Legal advisers holding contracts in specific categories of law were able to use tolerances to provide advice in some of these areas of law. These advisers were not dabblers. They were looking to provide the much vaunted holistic service, encouraged to use tolerances by the LSC, with the support of the SSS.

Solicitors and not for profit advice agencies have been able to call upon the SSS for advice, both oral and written. Research is undertaken, draft precedents and case law provided, to assist the front line workers. Supported case work enabled SSS advisers to supervise, monitor and mentor the front line adviser, often many miles away, to continue to advise, assist and represent throughout the lifetime of a case. In addition, specialised training, has assisted in developing the skills and knowledge of what had become, an ever decreasing supply of advisers. The SSS was able to identify geographical areas where common problems were emerging and to create tailor made training packages to up-skill front line advisers.

The viability and sustainability of many practices was rescued by the SSS.

The LSC now proposes to pull the rug from underneath the legal practices and advice agencies that have relied upon the support. How can this decision be rationalised?

From pilot to permanent

A successful scheme piloted for three years was acknowledged by the LSC as being of an excellent standard.

Regional Legal Service Committees set up to investigate need for legal services and advise upon how access could be maintained and improved continually sang the praises of the SSS.

The report of one such Committee read “….when determining those suppliers whose contract should continue to be let, the Commission favours those suppliers which can demonstrate evidence of use of the SSS…..”.

Following a successful pilot, the LSC formalised the service.

When the news broke of the intention to abolish the service, Janet Paraskeva, Chief Executive of the Law Society, described it as “bizarre”.

Within hours of formal notice being given by the LSC, communications from numerous organisations expressed concern at the intended demise and anxiety over how they would be able to continue to provide advice and in some cases even to remain in business.

The likely damage to access, quality and sustainability is immeasurable.

So, what is the rationale behind the LSC decision?

The entire scheme for England and Wales costs less than £3 million – a small proportion of the £2.1 billion budget.

During debate in Parliament, the Minister said “…the Commission believe that by giving this money almost £3 million, directly to front line advisers, it will be able to advise thousands more people who are desperate for such legal advice, by refocusing the limited resources available, the CLS would be better able to defend the rights of people…..”.

To explain this “refocusing” the LSC say that some of the funding will go to provide face to face advice. It is abundantly clear that a substantial part will go to develop CLS Direct.

Easy access by telephone is to be welcomed. The CLS Direct service has brought swift advice to large numbers. However, the advice can only take matters so far. Clients advised that they can enforce a right or defend against a wrong, then need more than advice. They often need assistance pursuing their case and representation. A telephone service is a complement to this. Indeed and ironically, CLS Direct is encouraging more follow-on acts of advice and assistance to be provided by the very front line advisers who require specialist support.

Does this rationale hold water?

At a time when encouraging lawyers into legal aid work, especially into areas such as social welfare law, is like Canute stopping the tide, the Specialist Support Service had initially been like the little Dutch boy with his finger in the hole in the dam but as more and more users came to call upon the service, the tide was indeed beginning to turn.

Practitioners who had not felt confident to take on more complex cases, began to realise a newborn confidence with the readily available support of the SSS and with supported casework in particular. Clients who had seen the disappearance of the holistic service from their local advisers, were once again able to address their problems face to face with their front line adviser.

The loss of the service will perversely reduce the number of front line advisers.

Lord Carter has recent reviewed the procurement of legal services. An initial report upon criminal services suggests a much smaller number of larger providers in the future. He may recommend the same for civil legal services. That report is not due until April. This further brings into question the timing of the decision to abandon the SSS.

A word of sympathy for the LSC, it has a very big door to knock – that of the Treasury. A door firmly closed to the prospect of any further funding for the foreseeable future. The LSC needs to show more cases started within the same budget.

The LSC has issued contracts allowing solicitors to start 635,000 new cases for the year 2005/2006. However, it seems solicitors are on target to start only 517,000. Whilst a slight increase on last year, it is a significant drop on the 582,000 cases started in 2003/2004 and the 690,000 the previous year. Consequently, any reallocation of funds

from the SSS will not increase the number of additional clients who are actually helped. Indeed, for reasons set out above, it appears such reallocation may even prevent some clients from receiving the help they need.

Under CSL Direct, a client receives up to 30 minutes of advice and assistance by telephone. Any further advice and assistance, is subject to a means enquiry to determine whether they are financially eligible. It follows that a number of callers are receiving advice and assistance when they would otherwise not be financially eligible for legal help on a face-to-face basis.

More significant, is a comparison of the complexity of the advice. A client calling CLS Direct after a new kettle has failed to work, for advice upon whether they can take it back and receive a refund, hardly equates to a client requiring immigration advice because they are about to be deported; a tenant who has bailiffs at the doorstep with an eviction order; a person under disability who is struggling to survive because they are not receiving the appropriate care and are being refused Disability Living Allowance, the Judicial Review of a Local Authority decision affecting the housing, schooling or health provision for a client with mental health difficulties. Front line advisers with the support of the SSS have dealt with these and other more complicated problems.

Whilst there are a number of front line advisers who have the expertise and experience to deliver a service in these areas of work without needing to call upon the SSS, their numbers are wholly insufficient.

Can the decision be reversed?

The matter has been raised as a cause of concern in both the House of Commons and the House of Lords.

An Early Day Motion, signed by more than a hundred MP’s proposes:-

That this House condemns the LSC recent decision to end all funding of Specialist Support Services in England and Wales from July 2006, despite the outcome of its own review in 2003/04 which recognised the value and importance of specialist support advice, mentoring and training in complex areas of social welfare law for LSC approved agencies working directly with the public; notes that this will mean in Wales the end of the Wales Specialist Support Service which provides expert help and training in housing, welfare benefits and debt and across England and Wales, the loss of essential advice and training in mental health, community care, employment, HIV/Aids, immigration and human rights as well as housing, welfare benefits and debt, provided by acknowledged expert agencies, such as the Child Poverty Action Group, Disability Law Service, Citizens Advice, Joint Council for the Welfare of Immigrants, Liberty, MIND, Shelter, Terrence Higgins Trust and others; further regret the implications of this cut in funding for vulnerable clients who are not in a position to employ specialist advisers; and calls on the Government to restore funding for specialist support and strengthen the provision of legal advice for those in the greatest need.

Alan Beith MP, Chairman of the Constitutional Affairs Select Committee and his members, were so concerned that they took evidence from the LSC from acting Chief Executive Brian Harvey, Director of CLS Crispin Passmore and the Director of Legal Aid Strategy at the DCA, Amanda Findley.

The lawfulness of the LSC decision to terminate the contract is also questionable when considering the consultation process.

The LSC consulted with the organisations providing the SSS but without giving any indication that termination was a possibility. More particularly, the LSC failed to consult those LSC approved front line advisers who use the service.

Many of these front line advisers have already expressed concern about the demise of the SSS. The LSC were asked directly whether their decision would change if every front line adviser informed the LSC that they could not continue without the assistance of the Specialist Support Service. The answer was a clear and unqualified “No”.

A number of the specialist support providers are challenging the LSC decision to bring the SSS to an end. The LSC purported to consult but as Brian Harvey indicated apologetically to the Select Committee “The consultation process could have been handled better”.

The challenge to the LSC also raises serious questions about the underlying merits of the decision to end the Scheme. Julie Morgan MP, a member of the Select Committee, summed matters up during the questioning of Brian Harvey when she stated “you have a specialist service that is working very well, your own evaluation acknowledged how good it was, the people who use it pay almost universal praise for the way they are able to deal with very complex cases very quickly, very swiftly and at great saving to the public purse…. CLS Direct themselves refer to the advisers, so it seems to me that there is no convincing case at all for saying that you are going to be able provide all that expertise at the front line”.

Judicial Review?

A letter before claim was sent to the LSC on the 15th February and a substantive response is awaited. The hope is that a period of negotiation will precipitate a proper consultation process and a reconsideration of the decision by the LSC in light of all the relevant facts.

The legacy of the demise of SSS

The continuation of the pilot encouraged organisations to invest and develop in unfashionable, and in many cases unprofitable, areas of law to continue providing advice directly to their clients. Many will now think again.

Advice deserts that emerged during the early stages of franchising and contracting may re-emerge.

Front line advisers may once again need to rely upon friendly members of the Bar who are prepared to provide specialist advice and assistance to solicitors and to do so pro bono in the absence of any other form of funding.

A less than accurate impression will be given of the number of clients receiving advice. Whilst some excellent advice can be given over the telephone, many such acts of assistance will be for simple matters that would not meet the sufficient benefit test relevant to civil legal aid.

As for more efficient use of the budget, the LSC’s own evaluation of the pilot scheme suggested that advice using the SSS could be delivered in minutes rather than hours!

Written and Submitted by Roy Morgan, Senior Partner at Morgans Solicitors and Chairman LAPG

List of Agencies providing advice:
Child Poverty Action Group
Disability Law Service
Citizens Advice
Joint Council for Welfare Immigrants
Liberty
MIND
Shelter and shjelter f ymru
Terrence Higgins Trust
Morgans Solicitors
3 sets of Chambers (Pump Court, Doughty Street and Garden Court)